Keith Mack
In the UK, the term common-law partner is used to describe cohabiting couples who are unmarried and not in a civil partnership. While common-law marriage does not exist in Scotland, cohabiting couples can be recognised under Scots Law in certain circumstances. This includes recognition of household goods acquired during cohabitation and equal rights to money saved from housekeeping. Cohabiting couples can also make financial claims against their ex-partners within a year of splitting up. However, it's important to note that common-law partners do not have the same legal rights as married couples in areas such as property ownership, pension claims, and child arrangements. To protect their rights, cohabiting couples can create comprehensive cohabitation agreements or seek legal advice to understand their specific entitlements.
What is a common-law partner entitled to in Scotland?
| Characteristics | Values |
|---|---|
| Legal recognition of the term "common-law partner" | No, it is a colloquial term only. |
| Rights of common-law partners | Not the same as married couples or civil partners |
| Household goods | Owned equally by both partners. |
| Savings from housekeeping money | Owned equally by both partners. |
| Property bought from housekeeping money | Owned equally by both partners. |
| Claim against partner within a year of splitting up | Allowed, if financially disadvantaged as a result of the relationship. |
| Claim on partner's estate in the event of their death | Allowed, if no will was made. |
| Claim on partner's pension benefits | Allowed, if named as a beneficiary. |
| Claim on partner's death-in-service benefits | Allowed, if named as a beneficiary. |
| Claim on partner's pension if they die | Allowed, if named as a beneficiary. |
| Claim on partner's estate if they die without a will | Allowed, within six months of death. |
| Automatic right to share in the property on separation | No, unless the title deeds provide that the couple owns the property in equal shares. |
| Right to seek a buyout if one partner wishes to leave | Yes. |
| Right to claim financial support from each other on separation | No, but they are entitled to payments for the benefit of any children. |
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What You'll Learn
Cohabiting couples' rights to property ownership
In the UK, the term "common-law partner" is often used to describe cohabiting couples who are not married or in a civil partnership. However, legally, a "common-law partner" has no rights. This means that unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or whether they have children.
In Scotland, cohabiting couples can protect their rights by creating a comprehensive cohabitation agreement. This agreement can include a co-purchase agreement, outlining the terms of a property purchase and what happens to the proceeds when the property is sold. It can also cover financial contributions to the household and property, whether on a 50:50 basis or apportioned according to earnings.
Cohabitation agreements are important because, unlike married couples, cohabitants do not have automatic rights to property in their partner's sole name. If a cohabiting couple separates, they must negotiate their claim under Section 28 of the Family Law (Scotland) Act 2006 with legal advisors, or make an application to the court within twelve months. For a successful claim, the cohabitant must prove they suffered an economic disadvantage, and their partner gained an economic advantage due to the relationship.
Additionally, a surviving cohabitant does not have automatic legal rights to their deceased partner's estate if there is no will. However, they can make a claim under Section 29 of the Family Law (Scotland) Act 2006 within six months of the date of death. The court will then consider factors such as the size and nature of the net intestate estate and any benefits the surviving partner will receive due to the death, such as pension or life insurance payments.
It is important to note that a cohabitation agreement drafted in Scotland is only valid in that country. While it may feel like tempting fate, it is prudent to have an agreement in place before moving in together to protect each partner's rights and investments.
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Common-law partners' rights to each other's pensions
In the UK, the term "common-law partner" is a colloquial term used to describe cohabiting couples who are not married or in a civil partnership. However, in the eyes of the law, this term holds no legal rights. This means that unmarried couples will not have the same rights as married couples, regardless of the length of their relationship or the presence of children.
In Scotland, common-law marriage does not exist. However, there was a form of irregular marriage called "marriage by cohabitation with habit and repute". This type of marriage required the couple to have lived together continuously for more than 20 days and to have been generally regarded as husband and wife by their community. While this form of marriage was abolished in 2006, any irregular marriages contracted before 1940 are still considered valid.
When it comes to pensions, common-law partners in Scotland do not have automatic rights to their partner's state pension or occupational pension upon separation. However, an unmarried partner can choose who will receive the pension pot if they die before utilising it. Additionally, the pension holder can arrange a 'survivor pension' for an unmarried partner who is financially dependent.
To safeguard their interests, cohabiting partners can establish a cohabitation agreement. This document outlines each partner's rights and responsibilities during the relationship and in the event of separation. While there may be legal debate about its enforceability, having a cohabitation agreement provides evidence of 'intention', which can help avoid future litigation.
It is recommended that individuals seek specialist legal advice regarding their specific circumstances to understand their rights and options fully.
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Child maintenance and support payments
In Scotland, child maintenance refers to the money paid by one parent to the other to contribute to the cost of the child's upkeep. This is typically paid to the parent with primary custody or day-to-day care of the child. While many parents can agree on the level of maintenance between themselves, others may require assistance or enforcement. Child maintenance payments do not affect any benefits received, including Universal Credit, and are not taxable.
In the UK, unmarried couples, or those in a common-law partnership, do not have the same rights as married couples, regardless of the length of their relationship or if they have children. However, the law recognises that a child benefits from the involvement of both parents in their lives, regardless of their marital status, as long as it is in the child's best interests.
In Scotland, the Child Maintenance Service (CMS) can assist in determining the rate of maintenance if parents cannot agree. A fee is typically charged for this assessment, although it is waived for victims of domestic abuse. The CMS considers the overall care arrangement and assesses the non-resident parent's gross income. The paying parent has no control over how the money is spent, and once the assessed amount is paid, they are not obligated to contribute further financially.
If day-to-day care is shared equally, neither parent is considered 'non-resident', and child support may not be payable. A shared care court order, written agreement, or a summary of care arrangements over the past year can be submitted as proof of equal care.
It is recommended to seek legal advice for specific circumstances, and there are legal resources available to assist with child maintenance concerns and negotiations to avoid costly court action.
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Common-law partners' rights to their partner's estate
In the UK, the term "common-law partner" is often used to describe cohabiting couples who are not married or in a civil partnership. However, legally, a "common-law partner" is a colloquial term with no rights. This means that unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or the presence of children.
In Scotland, cohabiting couples can be recognised under Scots Law in certain circumstances. The Family Law (Scotland) Act 2006 outlines that household goods acquired during the relationship and used in their shared residence are presumed to belong to both partners equally. Additionally, any money saved from housekeeping or property bought with housekeeping money is shared equally, regardless of who provided the funds.
Cohabitants can make a financial claim against their ex-partner within a year of splitting up if they feel financially disadvantaged by the relationship. However, there is no automatic right to claim anything, and the court has discretion in these matters. While cohabiting couples cannot claim their partner's state pension, an unmarried partner can choose the recipient of the pension pot if they pass away before utilising it.
Regarding property ownership, if the house is in one partner's name, the other partner does not automatically have a right to share it upon separation. However, they may prove a beneficial interest through financial contributions, such as paying the deposit or contributing to the mortgage. Creating a comprehensive cohabitation agreement can help establish a clear framework for managing shared assets and financial responsibilities, providing legal protection in the event of a separation.
In the event of a partner's death, a cohabitant can claim a share of their estate if there is no will, but this claim must be made within six months. The cohabitant may also receive pension benefits and/or death-in-service benefits if they are named as a beneficiary or if they have children together.
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Cohabitation agreements and their benefits
In Scotland, the term "common-law marriage" does not exist, and a “common-law partner” has no legal rights. However, cohabitation agreements can provide some benefits and protections for unmarried couples living together.
A cohabitation agreement is a contract between two people who live together or intend to live together and outlines each party's rights and responsibilities. It can cover various aspects, including property ownership, financial arrangements, and plans for potential breakups. In Scotland, the Family Law (Scotland) Act 2006 recognises cohabitation agreements and allows cohabitants to make financial claims against their ex-partners. This legislation specifically protects the interests of cohabitants, treating them as if they were married or in a civil partnership.
One of the main benefits of a cohabitation agreement is financial flexibility and security. It allows couples to organise their finances during and after cohabitation, protecting individual financial security and future inheritance for children. It clarifies ownership of pre-existing property, details contributions to mortgage payments and joint bills, and can outline financial support for children in the event of a breakup. Additionally, it can help in claiming a partner's pension pot or survivor pension if they are financially dependent.
Cohabitation agreements also provide clarity and protection regarding property ownership. They can outline potential buyouts if one partner wishes to leave and determine each party's rights and intentions regarding the property they share or intend to share. This can help avoid disputes and provide legal protection over the property in the event of a separation.
It is important to note that, while cohabitation agreements offer some benefits, unmarried couples living together do not have the same legal rights as married couples or those in civil partnerships. Seeking legal advice from a solicitor specialising in this area of law is recommended to ensure the agreement is fair and reasonable and to understand the specific rights and protections available in Scotland.
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Frequently asked questions
In the UK, a "common-law partner" is a colloquial term used to describe cohabiting couples who are not married or in a civil partnership. Legally, there is no recognition of a "common-law partner/spouse".
Common-law partners in Scotland do not have the same rights as married couples or civil partners. However, they can be recognised under Scots Law in some circumstances. Here are some key rights:
- Household goods acquired during cohabitation are presumed to belong to both partners equally.
- Money saved from housekeeping, or property bought with that money, is owned equally by both partners, regardless of who earned the money.
- Cohabitants can make a financial claim against their ex-partner within a year of splitting up if they suffered an economic disadvantage as a result of the relationship.
- If the house is jointly owned, the title deeds will determine how much each partner is entitled to if the property is sold. Usually, this means equal shares, but contributions such as providing the deposit may be considered for a different division.
- If one partner dies, the surviving partner may receive some of their pension benefits and/or death-in-service benefits if they were named as a beneficiary or had children together.
Common-law partners in Scotland cannot claim financial support from each other upon separation. However, they may be entitled to payments for the benefit of any children they have together.
If the house is in one partner's name, the other partner does not automatically have a right to share in the property upon separation. However, they may be able to prove a beneficial interest if they can demonstrate it was intended to share the equity, such as by contributing to the deposit or mortgage.
